VFP INVESTMENTS I LLC, plf-ap, v. FOOT LOCKER, INC., def-res, KATHLEEN SMITH def

2817. VFP INVESTMENTS I LLC, plf-ap, v. FOOT LOCKER, INC., def-res, KATHLEEN SMITH def — Whiteford Taylor & Preston L.L.P., Baltimore, MD (William F. Ryan, Jr. of the bar of the State of Maryland, admitted pro hac vice, of counsel), for ap — Kelley Drye & Warren LLP, New York (John M. Callagy of counsel), for res — Order, Supreme Court, New York County (Charles E. Ramos, J.), entered October 26, 2015, which granted defendant Foot Locker, Inc.'s motion to dismiss the complaint as against it pursuant to CPLR 3211(a) (7), unanimously affirmed, without costs.

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2817. VFP INVESTMENTS I LLC, plf-ap, v. FOOT LOCKER, INC., def-res, KATHLEEN SMITH def — Whiteford Taylor & Preston L.L.P., Baltimore, MD (William F. Ryan, Jr. of the bar of the State of Maryland, admitted pro hac vice, of counsel), for ap — Kelley Drye & Warren LLP, New York (John M. Callagy of counsel), for res — Order, Supreme Court, New York County (Charles E. Ramos, J.), entered October 26, 2015, which granted defendant Foot Locker, Inc.’s motion to dismiss the complaint as against it pursuant to CPLR 3211(a) (7), unanimously affirmed, without costs.

The fraudulent misrepresentation claim based on the theory of respondeat superior fails to state a cause of action. The allegations reasonably permit the inference that the verification of accounts receivable issued to Foot Locker by nonparty G3K, a provider of marketing materials, fell within the scope of defendant Smith’s employment as Foot Locker’s “Director of In-Store Marketing,” although they do not support a finding that verification was within the scope of defendant Rainier’s employment as “Divisional Vice President of Franchise Development.” However, nothing in the complaint permits the inference that Smith engaged in this fraudulent verification in furtherance of Foot Locker’s business, rather than solely for personal motives (see Judith M. v. Sisters of Charity Hosp., 93 NY2d 932 [1999]).

VFP INVESTMENTS I LLC, plf-ap, v. FOOT LOCKER, INC., def-res, KATHLEEN SMITH def

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